Question of the Day

Did illegal voters swing any congressional races?

President Bush’s nominee as director of the Central Intelligence Agency, Gen. Michael V. Hayden, is vulnerable for frustrating congressional oversight, subordinating the Constitution to vaulting professional ambitions, and lack of candor. These vulnerabilities should be explored at Thursday’s confirmation hearing.

Gen. Hayden has resisted disclosing to the House and Senate Intelligence Committees informative details of the National Security Agency’s warrantless electronic surveillance program that flouts the Foreign Intelligence Surveillance Act (FISA). Neither Committee, for instance, knows the number of Americans targeted, the intelligence value of the eavesdropping, the earmarks employed by NSA professionals to select American targets, or the reasons FISA was thought deficient. Neither do the committees know of the advice received by the NSA from either its lawyers, or the vice president, or the attorney general justifying the lawfulness of FISA’s circumvention, although sharing legal analyses cannot plausibly compromise intelligence sources or methods. (The statute has been amended five times since September 11 to accommodate the Bush administration. In 2002, after the warrantless surveillance program had been operating for many months, Mr. Bush’s Justice Department informed the Senate Intelligence Committee that FISA enabled interdiction of terrorist plots in the bud).

While a handful of senators and representatives have been informed to an indeterminate extent of the NSA’s warrantless spying, Gen. Hayden has never explained why the full committee cannot be trusted to keep secrets as they are with all other noncovert programs. Meaningful oversight is a collective endeavor employing collective wisdom. A rump committee is no substitute, just as one Supreme Court justice cannot do the service of nine.

According to an uncontradicted New York Times story published last Sunday, a furious legal battle erupted between NSA’s lawyers on one side, and Vice President Dick Cheney and his legal guru David S. Addington on the other, over the scope of the warrantless surveillance program. Gen. Hayden was no bystander. A former intelligence official elaborated: “He was a stickler for staying within the framework laid out and making sure it was legal, and I think he believed that it was.” Last week, USA Today revealed a secret NSA program to collect the calling records of tens of millions of individuals and businesses without FISA warrants in the hopes of identifying suspicious calling patterns. The purely domestic spying deviates from FISAs’ restrictions on pen registers, although nothing legally can be definitively said until the complete dimensions of the program are known.

President Bush asserted on the heels of the USA Today disclosure: “We are not mining or trolling through the personal lives of millions of Americans. Our efforts are focused on links to al Qaeda and their known affiliates.” In other words, the president and NSA believe tens of millions of Americans are linked or affiliated with al Qaeda, a belief that suggests either paranoia or a conflation of political opposition with terrorism.

The Senate and House Intelligence Committees need the details of the NSA’s spying programs to examine their wisdom, legality or the necessity of new legislation. They need access to internal policy deliberations and the legal advice assembled to justify the post-September 11 warrantless spying outside FISA.

Former CIA Director Porter Goss, fired by Mr. Bush to make way for Gen. Hayden, persuasively argued the case for Congress as then chairman of the House Intelligence Committee in 2000: “The NSA General Counsel’s Office contended … that its legal opinions, decisional memoranda, and policy guidance, all of which govern the operations and mechanisms of that federal agency, are free from scrutiny by Congress. This would result in the envelopment of the executive branch in a cloak of secrecy that would insulate the executive branch from effective oversight. It would also undermine the intent of the 94th and 95th Congresses to establish stringent oversight of the intelligence community. This outcome would seriously hobble the legislative oversight contemplated by the Constitution.” With regard to the NSA’s legal advice, Mr. Goss underscored that committee access was essential to reassure that the spy agency interpreted its authority correctly and was not aping its prior lawlessness chronicled by the Church Committee.

Gen. Hayden should be denied confirmation unless he agrees to support disclosures to the full House and Senate Intelligence Committees of the internal policy debates, details, and legal rationales of the NSA’s warrantless spying programs, both known and unknown to Congress or the public. Corresponding disclosures were made by President Ronald Reagan, including debate within the National Security Council and the legal authority for transferring arms to Iran and diverting the proceeds to the Nicaraguan resistance, to enable Congress to investigate the Iran-Contra affair. If Gen. Hayden balks, he would not be a trustworthy steward of the CIA’s accountability to Congress.

The general’s commitment to the rule of law is likewise dubious. Even in the military, a soldier is obligated to disobey a clearly illegal order. Gen. Hayden insists NSA’s circumvention of FISA is legal, but he has stubbornly refused to reveal the legal advice underwriting that conclusion, and preposterously asserts discussing the law would threaten national security. Unknown to Congress is who provided the advice, when it was provided, whether opinions were conflicting, or how the nominee determined if the advice had solid constitutional grounds.

A CIA director’s devotion to the rule of law is exceptionally urgent because intelligence activities regularly escape judicial or congressional review and the White House habitually seeks to manipulate intelligence agencies for illegitimate ends. During Watergate, for example, Director Richard Helms refused instructions from President Richard M. Nixon to pay bail for the Watergate burglars and to ambuscade an FBI investigation into the burglars’ financing by suggesting the inquiry would reveal CIA assets.

Gen. Hayden should be asked to demarcate legal lines he would not cross even if commanded to do so by President Bush, such as opening mail, conducting physical searches without warrants, using cruel, inhumane or degrading interrogation techniques, or employing battlefield tactics appropriate for Kabul or Kandahar on the sidewalks of the United States in fighting international terrorism.

Finally, the nominee’s candor, a quality indispensable for constructive oversight and debate, is under a cloud.

On the one hand, he has maintained that FISA is unworkable for NSA’s targeting of American citizens when communicating with individuals abroad. On the other hand, he tacitly concedes FISA is workable for intercepting purely domestic communications of suspected al Qaeda members. But FISA’s standards and procedures are identical in both situations. Gen. Hayden should be compelled to explain the inconsistency, which has been underscored by the Justice Department’s testimony to Congress on July 31, 2002, that FISA’s antiterrorism credentials are impeccable on all fronts.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.